Citation Nr: 0629993
Decision Date: 09/22/06 Archive Date: 10/04/06
DOCKET NO. 04-38 500A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to a compensable rating for arthritis, left
knee.
2. Entitlement to a compensable rating for onychomycosis,
nail and nail bed, right thumb.
3. Entitlement to a compensable rating for lichen planus,
penis.
4. Entitlement to service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Service Representative
ATTORNEY FOR THE BOARD
L.A. Howell, Counsel
INTRODUCTION
The veteran served on active duty from June 1973 to November
1980 and from November 1982 to March 1997.
This claim is on appeal from the Pittsburgh, Pennsylvania,
Department of Veterans Affairs (VA) Regional Office (RO),
which, among other things, granted entitlement to service
connection for left knee arthritis and assigned a
noncompensable evaluation. The veteran now disagrees with
the disability rating.
The Board notes that a claim placed in appellate status by
disagreement with the original or initial rating award
(service connection having been allowed) but not yet
ultimately resolved, as is the case herein at issue, remains
an "original claim" and is not a new claim for increase.
Fenderson v. West, 12 Vet. App. 119 (1999).
In such cases, separate compensable evaluations must be
assigned for separate periods of time if such distinct
periods are shown by the competent evidence of record during
the pendency of the appeal, a practice known as "staged"
ratings. Id. at 126.
As the statement of the case has indicated that all pertinent
evidence has been considered, and the RO has determined that
a noncompensable rating is to be assigned for the entire
period at issue, the Board can proceed with its review
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993).
The veteran was scheduled to testify before the undersigned
Veterans Law Judge in May 2006. He was living abroad and,
due to recent circumstances, was unable to attend and the
service representative appeared on his behalf. A transcript
of the brief hearing is of record.
The issues of entitlement to compensable ratings for
onychomycosis and lichen planus and entitlement to service
connection for diabetes mellitus are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's left knee disability is manifested by
subjective complaints of aching with prolonged sitting,
standing, and driving.
2. Objective findings include X-ray evidence of arthritis of
the left knee.
CONCLUSION OF LAW
An evaluation of 10 percent, but no more, for arthritis of
the left knee is warranted. 38 U.S.C.A. §§ 1155, 5103(a),
5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7,
4.10, 4.71, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5256,
5257, 5258, 5259, 5260, 5261 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (2006). Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2006).
However, the Board has been directed to consider only those
factors contained wholly in the rating criteria. See Massey
v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v.
Principi, 16 Vet. App. 436 (2002) (finding it appropriate to
consider factors outside the specific rating criteria in
determining level of occupational and social impairment).
Where there is a question as to which of two separate
evaluations shall be applied, the higher evaluation will be
assigned if the disability more closely approximates the
criteria required for that particular rating. Otherwise, the
lower rating will be assigned. 38 C.F.R. § 4.7 (2005).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability, such doubt will be resolved in favor of
the veteran. 38 C.F.R. § 4.3 (2006).
After reviewing the evidence on file, the Board finds that
the veteran is entitled to a 10 percent rating for arthritis
of the left knee with painful motion. Specifically, in a
March 2002 VA examination, the veteran complained of his knee
aching with sitting for long periods or driving.
A physical examination revealed no gross anatomical
abnormality, quad strength was good, and there was no
tenderness, effusion, or laxity on either side. While the
examiner noted that X-rays were normal, the actual X-ray
report noted "mild degenerative changes in the left patello
femoral joint and mild medial joint space narrowing,
suggesting early degenerative change."
As noted above, VA General Counsel has held that a claimant
who technically had full range of motion but the motion was
inhibited by pain may be rated under DC 5003. Accordingly, a
10 percent evaluation is warranted for left knee arthritis.
The rating for arthritis is based upon painful motion. It is
noted that in assigning this separate rating, the Board has
contemplated the complaints as described by the veteran.
Having determined that the veteran is entitled to a 10
percent rating, the Board finds that the evidence does not
support a rating in excess of 10 percent. First, in order to
warrant a higher rating for arthritis of the left knee, the
evidence must show the absence of limitation of motion, in
addition to X-ray evidence of involvement of two or more
major joints, or two or more minor joint groups, with
occasional incapacitating exacerbations (20 percent under DC
5010).
Moreover, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59
are applicable in rating arthritis and other musculoskeletal
disabilities. Section 4.40 provides that, as to the
musculoskeletal system, it is "essential that the
examination on which ratings are based" adequately portray
any "functional loss" which "may be due to pain." The
regulation does not require a separate rating for pain, but
the impact of pain must be considered in making a rating
determination. See Spurgeon v. Brown, 10 Vet. App. 194, 196
(1997).
Section 4.45(f) states that "[p]ain on movement, swelling,
deformity or atrophy of disuse" as well as "[i]nstability
of station, disturbance of locomotion, interference with
sitting, standing and weight-bearing" are relevant
considerations for determination of joint disabilities.
Incoordination and excess fatigability are also factors for
consideration under section 4.45(d) and (e). Section 4.59
contemplates "at least the minimum compensable rating" for
painful motion "with joint or periarticular pathology."
Diagnostic codes involving disability ratings for limitation
of motion of a part of the musculoskeletal system do not
subsume §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App.
202, 206 (1995). Limitation of motion in the affected joint
or joints is a common manifestation of arthritis, and DC 5003
is to be "read in conjunction with" § 4.59. Diagnostic
Code 5003 is "complemented by" § 4.40. See Hicks v Brown,
8 Vet. App. 417, 420-21 (1995). Thus, §§ 4.40, 4.45, and
4.59 are applicable in evaluating arthritis.
The functional loss due to pain is to be rated at the same
level as the functional loss where motion is impeded.
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Under
§ 4.59, painful motion is considered limited motion even
though a range of motion is possible beyond the point when
pain sets in. Hicks, 8 Vet. App. at 421.
However, the most recent VA examination report did not
indicate that there were incapacitating episodes of
arthritis. In fact, the examiner reported that the veteran's
knee examination was "entirely normal." This is consistent
with the other medical evidence of record showing very little
to no complaints related to the left knee.
Therefore, the functional impairment described in the
examination report and outpatient medical evidence is
indicative of no more than the impairment contemplated by the
schedular disability rating of 10 percent now-granted for
degenerative joint disease of the left knee under DCs 5003-
5010.
The Board also finds that the medical evidence does not
support a higher rating under any other relevant diagnostic
code. Specifically, a higher rating may be available under
the following circumstances:
* favorable ankylosis of the knee, in full extension or in
slight flexion between 0 degrees and 10 degrees (30
percent under DC 5256);
* moderate recurrent subluxation or lateral instability
(20 percent under DC 5257);
* semilunar cartilage dislocation, with frequent episodes
of locking, pain, and effusion (20 percent under DC
5258);
* limitations of flexion when flexion is limited to 30
degrees (20 percent under DC 5260); or,
* limitations of extension when extension is limited to 15
degrees (20 percent under DC 5261).
After a careful review of the medical evidence of record, the
Board finds that a higher rating for a left knee disability
is not warranted.
Significantly, the most recent VA examination noted that the
physical examination of the veteran's left knee was normal.
Of note, clinical findings do not disclose that the veteran
has ankylosis. Ankylosis is defined as stiffening or
fixation of a joint. A normal examination does not support a
finding of ankylosis.
Next, the Board finds that the veteran's symptoms constitute
no more than a "slight" knee disability. Turning again to
the VA examination, the examiner characterized the veteran's
left knee as having good quad strength, no crepitus, no
tenderness, no effusion, and no laxity. While the veteran
complained of an aching in the knee, the evidence reflects no
more than mild disability.
Next, a 20 percent rating under DC 5258 requires cartilage
dislocation with frequent locking, pain, and effusion. In
this case, there was no evidence of crepitus. Further, X-
rays show mild degenerative changes but there were otherwise
no significant abnormalities seen, to include a cartilage
dislocation, a threshold component of DC 5258. Without
evidence of cartilage dislocation, DC 5258 is not for
application.
Also, while a higher rating could be available under DCs 5260
and 5261 (limitation of flexion/extension), the Board again
notes that the VA examination showed that the left knee was
"normal," which does not warrant a higher evaluation under
either DC 5260 or DC 5261. Therefore, the objective medical
evidence does not support the claim for a higher rating. In
sum, despite the veteran's on-going complaints of aching
pain, the medical evidence does not support a higher rating
at this time.
Finally, the Board notes that the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106,
5107, 5126 (West 2002)), imposes obligations on VA in terms
of its duty to notify and assist claimants. Under the VCAA,
when VA receives a complete or substantially complete
application for benefits, it is required to notify the
claimant and his representative, if any, of any information
and medical or lay evidence that is necessary to substantiate
the claim.
To that end, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; (3)
that the claimant is expected to provide; and (4) request
that the claimant provide any evidence in his possession that
pertains to the claim.
The veteran was notified of the VCAA as it applies to his
present appeal by correspondence dated in June 2001. He has
been provided every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices.
The VCAA notice letter provided to the veteran generally
informed him of the evidence not of record that was necessary
to substantiate his claim and identified which parties were
expected to provide such evidence. He was notified of the
need to give to VA any evidence pertaining to his claim.
There is no allegation from the veteran that he has any
evidence in his possession that is needed for a full and fair
adjudication of this claim. He was also supplied with the
complete text of 38 C.F.R. § 3.159(b)(1) in the September
2004 SOC.
In essence, what the VCAA seeks to achieve is to give the
appellant notice of the elements outlined above. Once that
has been done - regardless of whether it has been done by way
of a single notice letter, or via more than one communication
- the essential purposes of the VCAA have been satisfied.
Because each of the four content requirements of a VCAA
notice has been met, any error in not providing a single
notice to the appellant covering all content requirements was
harmless. See, e.g., 38 C.F.R. § 20.1102 (2005). The
veteran has not claimed that VA has failed to comply with the
notice requirements of the VCAA and the Board finds that the
provisions of the VCAA have been fully satisfied.
Specifically, the revised VCAA duty to assist requires that
VA make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate a claim. See 38
C.F.R. § 3.159. In this case, the veteran's service medical
records and all identified and authorized post-service
medical records relevant to the issue on appeal have been
requested or obtained. Further, the veteran requested and
was provided with a hearing before the Board but was unable
to appear.
Next, in claims for disability compensation the VCAA duty to
assist requires VA provide medical examinations or obtain
medical opinions when necessary for an adequate decision.
The Board notes that a specific VA medical opinion pertinent
to the issue on appeal was obtained in May 2002. The
available medical evidence is sufficient for an adequate
determination.
In March 2006, the RO provided the veteran with notification
as to establishing a disability rating and effective date.
To the extent that the claim for an increased rating has been
granted, the RO will assign the rating and effective date and
so notify the veteran. No further notice is needed as to any
disability rating or effective date matters in this case.
See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Therefore, no further action is necessary under the mandate
of the VCAA.
ORDER
A 10 percent evaluation, but no more, for arthritis, left
knee is granted, subject to the law and regulations governing
the payment of monetary benefits.
REMAND
With respect to the remaining claims on appeal, the Board
finds that a remand is necessary.
With respect to the veteran's skin disabilities
(onychomycosis and lichen planus), after the veteran filed
his claims for increased ratings, the applicable rating
criteria for skin disorders, 38 C.F.R. § 4.118, were amended
effective August 30, 2002. See 67 Fed. Reg. 49,590 (July 31,
2002). While he has been provided with the amended skin
disorder regulations, he has not been afforded a VA
examination under the new skin regulations. As such, a
current examination is warranted.
With respect to the claim for diabetes mellitus, the Board
notes that the service medical records reflect that the
veteran was examined by a military physician in October 1996.
It was noted that the veteran had an elevated fasting blood
sugar and it was recommended that he follow-up with lab work
in two weeks with a fasting blood sugar. The evidence does
not show whether the veteran completed this testing.
Nonetheless, in March 1997 (time of discharge), his blood
sugar was reported as 115 mg/dl (with a reference range of
75-110 mg/dl). Post-service medical evidence shows that he
was diagnosed with diabetes mellitus in November 1998 with
blood sugars well over 300 mg/dl at that time. The Board
finds that a medical opinion is needed to determine whether
there is a medical nexus between the in-service notations and
post-service diagnosis.
The veteran is advised that while the case is in remand
status, he is free to submit additional evidence (including
private medical records) and argument. See Kutscherousky v.
West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
Accordingly, the case is REMANDED for the following action:
1. The RO should make the appropriate
arrangements for the veteran to be
afforded a skin examination to ascertain
the severity of his skin disabilities
(onychomycosis and lichen planus). All
indicated tests should be performed and
all clinical findings should be reported
in detail. The claims folder should be
made available to the examiner for review.
The examiner is asked to address the
following:
* Discuss whether the veteran has
experienced recurrent episodes of
his skin disabilities, in terms of
the number of episodes during the
past 12-month period.
* Address whether the veteran has
received treatment such as
antihistamines or systemic
immunosuppressant drugs for control,
and the amount of time that therapy
(if needed) was required, in terms
of "intermittent" or
"continuous."
2. The RO should make the appropriate
arrangements for the veteran to be
afforded a diabetes examination for a
medical opinion regarding the relationship
between his current diagnosis of diabetes
mellitus and active military duty. The
claims folder should be made available to
the examiner for review. The examiner is
asked to address the following:
* Does the record establish that it is
more likely than not (i.e.,
probability greater than 50
percent), at least as likely as not
(i.e., probability of 50 percent),
or less likely than not (i.e.,
probability less than 50 percent)
that the veteran's currently-
diagnosed diabetes mellitus had its
onset during service or is in any
other way causally related to
service?
* In responding to this question, the
examiner should indicate the degree
to which the opinion is based upon
the objective findings of record as
opposed to the history as provided
by the veteran.
3. Thereafter, the RO should re-
adjudicate the issues on appeal,
including consideration of the amended
skin regulations. If the benefits sought
remain denied, the veteran and the
representative should be provided with a
supplemental statement of the case. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs